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EAT rejects Wicked Vision v Rice and follows Court of Appeal decision in Osipov in whistleblowing detriment claim
Adrian Fryer
Employees have two distinct claims which they are able to bring in relation to whistleblowing: a claim for whistleblowing detriment under s47B Employment Rights Act 1996, and a claim of automatic unfair dismissal on grounds of whistleblowing. There has been some uncertainty in recent times as to whether an employee who claims that they have been dismissed on grounds of whistleblowing can bring, in addition to an automatic dismissal claim, a claim against their employer that the act of dismissal was a detriment on grounds of whistleblowing. The distinction is an important one. The remedies for each claim are different.
The Court of Appeal, in Timis and Sage v Osipov, held that an employee could claim the detriment of dismissal against his employer on the basis that the employer was vicariously liable for the act of the dismissing officer. The Employment Appeal Tribunal reached the opposite conclusion in Wicked Vision v Rice. In the recent case of Treadwell v Barton Turns Development, the EAT followed Osipov.
In Treadwell, the Claimant was dismissed by one of the Respondent’s directors. She claimed automatic unfair dismissal on grounds of whistleblowing against the Respondent. She later applied to amend her claim, to add a claim of whistleblowing detriment under s47B Employment Rights Act 1996 against the Respondent. The detriment relied upon was the decision taken by one of the Respondent’s directors to dismiss. She claimed that the Respondent was vicariously liable for this act of detriment. She did not seek to bring a claim of detriment against the dismissing officer as an individual. The employment tribunal refused the amendment. The Claimant appealed.
The Employment Appeal Tribunal, allowing the appeal, held that it was bound by the decision of the Court of Appeal in Timis and Sage v Osipov which held, at para 91:
“It is open to an employee to bring a claim under section 47B (1A) against an individual co-worker for subjecting him or her to the detriment of dismissal, that is for being a party to the decision to dismiss and to bring a claim of vicarious liability for that act against the employer under section 47B (1B). All that section 47B(2) excludes is a claim against the employer in respect of its own act of dismissal.”
The EAT held that it was not bound to follow the opposite conclusion reached by the EAT in Wicked Vision v Rice. This case is, itself, currently on appeal to the Court of Appeal where we should hopefully obtain some clarity.